65 Tex. 402 | Tex. | 1886
The court erred in overruling the motion of appellants to continue the cause. The affidavit for continuance was in strict compliance with the statute, and, in such cases, the court has no discretion in the matter, but must grant the continuance. Jones v. Banks, decided this term; Chilson v. Reeves, 29 Tex. 275. The court did not err in sustaining the demurrer of appellants
The language of our Revised Statutes on this subject is substantially the same as that used in the acts under which these decisions were made, and they are applicable and of binding force in the present case. Carr v. Tucker, 42 Tex. 330. It follows, therefore, that, although the land upon which the cotton levied upon was raised belonged to Mrs. Cole, and the animals, tools, and employes used in raising the cotton may have been furnished by her, the cotton was community property, and liable to execution for her husband’s debts. The cotton was m no sense received in exchange for the land, or the means used in producing it; but was the fruit of labor furnished by the wife, exercised upon lands temporarily owned by her. It was acquired during the marriage, and was as much the acquests and gains of the marital partnership as if she had received it in exchange for labor with her needle, or for any other personal service she might have performed. The entire community estate, when clearly ascertained to be such, being liable for the husband’s debts, the court cannot institute an inquiry into how much either the husband or the wife contributed towards its acquisition. Hence, the court did not err in refusing to allow Mrs. Cole, out of the value of the cotton, the amount she had contributed towards its production. Neither did the court err in so far as it found that $90.00 of the purchase money of the mules was the separate property of Mrs. Cole. This amount was part of $2,000 she received in compromise of a suit she had brought to recover lots in the city of Houston, which were her separate property.
It is apparent that the $2,000 was received in payment of her right to the land, that passing to the opposite party in the cause. Under these circumstances, the money, of course, became her separate property. It was not received as damages for a tort committed upon her property, but as the purchase money of the property itself. But, we are of opinion that, as only $90.00 of the purchase money of the mules was of the separate estate of the wife, and the balance of $60.00was to be paid out of the community estate of herself and husband, Mrs. Cole was entitled to an interest of not more than three-fifths in the mules. It has been frequently held by this court that, where property is purchased partly with the separate estate of the wife, and partly with means of a different character, the wife’s separate interest in it is pro
Uo part of the purchase money of the wagon seems to have been paid, but the whole was to be paid out of crops grown upon the wife’s land, which was community property.
Upon the facts before the court, we think the proper judgment would have been a recovery for Mrs. Cole against the appellants for $90.00, with interest from the date of the seizure of the mules, and a finding for defendants below in all other respects. But as the judgment must be reversed for the error of the court in refusing the continuance, it will necessarily have to be remanded, and upon a new trial a different state of facts may be shown by the evidence.- We may add that the conclusion of the judge who tried the cause, as found in the record we are considering, are not in accordance with our statutes, the same objections applying to them as were alluded to in Jones v. Banks, decided during the present term. The judgment is reversed and the cause remanded.
Reversed and Remanded.
[Opinion delivered February 2, 1886.]
